Will done whilst in the middle of a divorce with date set. Person died. Which will stands?

UPDATED: Oct 1, 2022

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Will done whilst in the middle of a divorce with date set. Person died. Which will stands?

I have a relative who just passed away. listed as suicide at the moment but may be a homicide. He was in the process of getting a divorce in Michigan with the date set for 23 October 2018. He had just made a new Will. So what stands? If the current wife was cut out of the most recent Will and estate left to his 3 children 2 by first wife and one by second wife. If the divorce was set for the 23rd, does the current wife get the estate/the whole kit and caboodle or does it go back to the Will before this last Will/most recent Will. Current wife is saying she gets the whole kit and kaboodle as they were still married.

Asked on August 30, 2018 under Estate Planning, Indiana


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

I am so sorry for your loss. If the Will was properly executed and finalized then it can be probated.  However,  if the divorce was not yet final, the Will can not cut out the wife and she has what is called a "right of election" under the Will.
Here is the law, but I would suggest that you seek help with the application to the facts of your case.  Good luck.
A surviving spouse may elect to take against the will of his or her deceased spouse and is entitled to one-half of the deceased spouse’s net personal property and real estate.  I.C. 29-1-3-1(a). If the surviving spouse is a subsequent spouse who (1) did not have children with the deceased spouse and (2) the deceased spouse left surviving children or decedents from a previous marriage, then the surviving spouse can elect to take one-third of the net personal estate, plus twenty-five percent of the remainder of the fair market value (as of the date of death) of real property, minus any liens and encumbrances. I.C. 29-1-3-1(a). 

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